Commentary Magazine


The Curious Case of Kiryas Joel

Supreme Court rulings on issues of church and state are a tangle of conflicting impulses. On the one hand, the Court has struggled over the past quarter-century to avoid even the slightest hint that it is “endorsing” or “advancing” religion. On the other hand, the Court has simultaneously sought to avoid the appearance of persecuting religion, and also to avoid appearing “insensitive” to religious minorities. The strains in this agenda were conspicuously on display in the case of Kiryas Joel v. Grumet, decided this past June.

By the time it made its way to the Supreme Court, Kiryas Joel had aroused a good deal of attention. Some two-dozen groups—representing a wide range of religious faiths, civil-liberties organizations, and the public-education lobby—submitted amicus briefs. Some hoped that the Court would use this case to signal a more accommodating stance toward religion, while others warned the Court to maintain its past vigilance against any “breach in the wall between church and state.”

But the ruling in Kiryas Joel will not bring lasting reassurance to either side—or stability to the law. The decision only highlights the underlying contradictions in the Court’s approach to religion, and confirms that, in its self-appointed role as the ultimate umpire of American pluralism, the Supreme Court now finds itself in a very strained and precarious position. What is more, in a nation where no ethnic group or religious sect enjoys anything approaching a commanding majority, the Court has begun to prefer some minorities over others.

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Kiryas Joel, formerly an undeveloped subdivision of the town of Monroe, New York, was incorporated as a self-governing “village” in 1977, a few years after hasidic followers of the Satmar rebbe1 began moving into the area from Brooklyn. The Satmars were soon embroiled in disputes with Monroe officials who claimed that they were violating local zoning requirements (by housing their large, extended families in homes designated for single-family use), so they sought independent status for their part of town. Because their non-Satmar neighbors strongly objected to seceding from Monroe, the boundaries of the new village were drawn to include only Satmar families and no one else.

The residents of Kiryas Joel sent their children to private religious schools, but the community’s handicapped children needed special services which these schools could not easily supply. Monroe public-school officials initially agreed to provide these services in the annex of a religious school in Kiryas Joel. But this arrangement ended after the Supreme Court ruled in 1985 (in A guilar v. Felton) that public-school teachers could not be sent into private religious schools.

Some Satmar families then tried the public schools outside the village where special services were provided. But their children—suffering from physical and mental disabilities, dressed in the exotic garb of the Satmars, speaking limited English (Yiddish is their first language), and constrained by special dietary restrictions—were subjected to so much mockery and abuse by other students that all but one of the families felt compelled to withdraw. Many of the children thereafter went without the special programs they were legally entitled to receive under state and federal law.

The Satmars then looked for alternatives. The Supreme Court had ruled in 1977 (in Wolman v. Walter) that children from parochial schools could receive instruction from public-school teachers at a “neutral site,” such as a trailer parked across the street from the school. But officials in the Monroe-Woodbury Central School District refused to offer this arrangement to the Satmar Hasidim, evidently because of the expense involved. A suit by the Satmars to force the school district to change its policy was rejected by the state courts in New York.

And so, in an attempt to solve the problem, Governor Mario Cuomo signed a bill into law in 1989 that authorized the village of Kiryas Joel to establish its own separate public-school district. There, a school was begun that eventually came to serve some 150 handicapped children—many of them, as it happens, from non-hasidic families living in the area. The Kiryas Joel school board hired teachers and administrators from outside the Satmar community, and the school was operated on a coeducational and entirely secular basis, in exacting conformity with past strictures of the Supreme Court.

This arrangement, nevertheless, provoked a legal challenge (filed by Louis Grumet, president of the New York Association of School Boards), on First Amendment grounds. In divided votes, New York state courts held against Kiryas Joel. The Kiryas Joel school district then appealed to the U.S. Supreme Court, which delivered its ruling on the case in June. In a 6-3 vote, the Justices agreed that the New York law establishing the Kiryas Joel school district was indeed in violation of the First Amendment guarantee against religious establishment.

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Even by the standards of contemporary case law, the ruling in Kiryas Joel broke new ground in the Court’s squeamishness about government accommodation of religion. For in a number of earlier cases, the Court has held that the First Amendment requires government to accommodate special religious circumstances. These contrary rulings cast a revealing light on the decision in Kiryas Joel.

For example, in 1963 (in Sherbert v. Verner), the Court decreed that South Carolina could not deny unemployment benefits to a Seventh Day Adventist who refused to accept a job requiring her to work on Saturday. In 1972 it ruled (in Wisconsin v. Yoder) that Wisconsin could not enforce its school-attendance laws against the Old Order Amish. (The Court accepted the Amish plea that anything more than primary education would have a corrupting effect on their children.)

Of course, this is not the whole story. For if in one line of cases the Court has tended to maintain that the First Amendment (in its free-exercise clause) requires government to accommodate religion by means of special exemptions, in another line of cases it has been insisting that the First Amendment (in its establishment clause) forbids government from endorsing, favoring, or “advancing” religion.

In the 1960’s, the Court began to emphasize the danger of subtle coercion that is posed to students who do not belong to the dominant Christian faith. It held, for example, that non-sectarian prayers and Bible readings are impermissible in the public schools. Thus, while it required South Carolina to respect the Sabbatarian convictions of a Seventh Day Adventist, in 1985 (in Thornton v. Calder), the Court turned around to rule that Connecticut could not require employers to respect the Sabbatarian convictions of all employees. The reason? The Connecticut statute provided protection not merely to a beleaguered religious minority but to Christians as a class, and was therefore too “broad-based.”

A number of Justices have protested from the outset that distinctions like these would embroil the Court in impossible contradictions. The conflict between the two lines of precedents reached an absurd culmination in a 1989 case (County of Allegheny v. ACLU). Here, the Court ruled that the city of Pittsburgh was prohibited by the Constitution from displaying a Christmas creche on public property, but not from displaying a Hanukkah menorah—because the latter, the Court maintained, would not be seen as an endorsement of the Jewish faith.

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Still, however contradictory the legal logic, Court decisions did follow a readily intelligible political pattern. Exotic and marginal sects, like the Amish and the Seventh Day Adventists, were seen by the Court as plausible candidates for special protection in the name of “free-exercise,” while major religious denominations—like Catholics or traditional Protestants—were restricted in the name of preventing an “establishment of religion.”

The Kiryas Joel case would appear to represent a notable deviation from this pattern. The Court looked at the Satmar Hasidim, a group which more than rivals the Old Order Amish in its exotic remove from the mainstream, yet proceeded to quail at the thought that the state might provide it with a special accommodation. In reaching this conclusion, the Court acknowledged that the Kiryas Joel school operated in an entirely secular manner. But the Court still condemned the school district as an improper gerrymander, tailored solely for the convenience of a particular religious group. In the Court’s view, the New York state law creating the school district had improperly singled out the Satmar Hasidim for a special privilege not available to other groups.

But, it should be noted, the Supreme Court has never been much troubled by gerrymandering when the beneficiaries were minorities it has deemed deserving. In 1977, for example, the Court (in United Jewish Organizations v. Carey) upheld a scheme expressly designed to increase the number of districts that would elect black representatives in Brooklyn. By coincidence, this redistricting plan was challenged by hasidic Jews, who protested that their votes had been spread among several precincts, thereby diluting their own electoral clout. The Supreme Court turned a deaf ear to their plea.

In 1993 (in Shaw v. Reno), the Court, in a 5-4 decision, did voice doubts about a racially-gerrymandered district in North Carolina because its eel-shaped configuration was too “bizarre.” But here, too, the Court held that race could legitimately be considered in drawing electoral maps as long as it was not the only factor taken into account. Moreover, the dissenting Justices insisted that such racial gerrymandering was fully in accord with the Constitution, at least when done for the benefit of an officially recognized “minority” group. Three of the four defenders of gerrymandering in Reno (Justices Souter, Stevens, and Blackmun) held only one year later that the Kiryas Joel school district was an unconstitutional gerrymander; the fourth, Justice White, was replaced on the high Court by Justice Ginsburg, who then also voted to condemn the Kiryas Joel school district.

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Even more strained is the Court’s contention in Kiryas Joel that accommodations to religion are forbidden if they happen to benefit only a single religious group. Speaking for the majority, Justice Souter acknowledged that in authorizing a separate school district, the New York state legislature had acted from permissible motives, but he insisted that this was not the point:

We simply refuse to ignore that the method it chose is one that aids a particular religious community, as such, rather than all groups similarly interested in separate schooling.

But since no one else had come forward to request such an arrangement, the Court could not know whether other groups were “similarly interested in separate schooling”—much less whether the New York legislature would have refused them the accommodation it made available to Kiryas Joel. As it happens, the Catholic Church and a coalition of Orthodox Jewish organizations—representing the two main sponsors of private religious schools in New York—submitted briefs in support of the Satmar Hasidim. In other words, the very groups most likely to seek such arrangements were keen to have the Court endorse the Kiryas Joel school district.

The Supreme Court itself displayed the very kind of favoritism it now deems improper when, in Yoder, it ordered Wisconsin to exempt the Amish (and only the Amish) from school-attendance laws. In Kiryas Joel, a concurring opinion by Justices Ginsburg and Blackmun acknowledged that the Satmar children had experienced “panic, fear, and trauma” when “leaving their own community and being with people whose ways were so different.” But now the Justices insisted that

the State could have taken steps to alleviate the children’s fear by teaching their schoolmates to be tolerant and respectful of Satmar customs. . . . Instead the State responded with a solution that affirmatively supports a religious sect’s interest in segregating itself and preventing its children from associating with their neighbors. The isolation of these children . . . unquestionably increased the likelihood that they would remain within the fold, faithful adherents of their parents’ religious faith.

Every word of this argument could apply as well to the Amish in the Yoder case. The Amish rejected high-school education because of their desire to live in a “church community separate and apart from the world,” which, as a cantankerous dissent by Justice Douglas pointed out at the time, meant that their children would have great difficulty in ever joining the wider world. Only with the Satmar Hasidim, it seems, has it become constitutionally suspect to bring up one’s children as “faithful adherents of their parents’ religious faith.”

Even in recent years, the Court has not repudiated accommodations to religion for other particular groups. In Employment Division v. Smith (1990), for example, it said Oregon could, if it wished, give adherents of an Indian peyote cult a unique exemption from the state’s drug laws. Ironically, Justice Souter, the author of the Court’s opinion against the Kiryas Joel school district, had himself cited the peyote exemption as a proper accommodation to religion in a case decided only two years ago (Lee v. Weisman, 1992).

No one has yet challenged such standard practices as public-school closings on Yom Kippur in cities like New York. But if taken literally, the logic of the Kiryas Joel case suggests that even such practices would be impermissible because they are undertaken to accommodate one particular group.

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Why, then, did the Court flout its own precedents to reach this troubling result? Running through the legal briefs, and indeed through previous rulings in this case, are a number of recurring insinuations: that the Satmars had been intolerably crafty in manipulating school laws, that they are racist and sexist, chauvinistic and fanatical. In short, they are politically incorrect.

Thus, lower courts in New York repeated the claim (drawn from a hostile sociological study) that within their own private schools the Satmars separate the sexes, with the boys “educated in Torah” and the girls “instructed on what they will need to function as adult women”—as if girls were given no religious training but simply primed to be subservient housewives. Such “facts” should have had no legal bearing in any event, since the public school for the handicapped in Kiryas Joel was run on the same coeducational basis as are all public schools. Nevertheless, amicus briefs submitted to the Supreme Court rehashed, word for word, this “description” of the Satmar’s objectionable educational practices.

One judge on the New York State Court of Appeals, in the course of explaining why the district was unconstitutional, thought it worthwhile to quote from still another sociological study, according to which the “ethnocentric attitude that [Satmars] alone are capable of upholding the Torah solidifies the hasidic belief that all other groups are inferior.” The American Federation of Teachers, in its own amicus brief, dredged up testimony from an unrelated lawsuit in New York city in which a Satmar parent says:

“It’s not that these Hispanic people are bad, it’s that they’re different. . . . They are not a good influence on our girls. . . . If we have our kids learning with them, they’ll be corrupted. . . . We don’t hate these people but we don’t like them.”

These irrelevant citations were then given a particularly nasty twist in amicus briefs that variously characterized Kiryas Joel as a “theocratic municipality,” a village practicing “religious apartheid,” a community analogous to the “Vatican and Mecca,” even to “Qom” (the holy city of the Iranian Ayatollahs) and “the Branch Davidian compound in Waco, Texas.” In other words, rather than being quaint and charming, the Satmars are offensive, bigoted—and dangerous.

It is difficult to make sense of the Kiryas Joel ruling except on the assumption that some Justices were influenced by these claims.

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The last word on this matter, however, has not yet been spoken. In response to the June ruling, the New York state legislature (with the support of Governor Cuomo) enacted a new law designed to overcome the Supreme Court’s objections: any incorporated village in the state which meets certain specified conditions may now vote to organize a separate school district for itself. The residents of Kiryas Joel have once again voted to do this. But the New York Association of School Boards, which sponsored the original suit against Kiryas Joel, has announced that it is preparing a legal challenge to this new law as well.

And so the battle continues. One of the striking features of this particular battlefield is the persistent claim in amicus briefs opposing the Satmar Hasidim that America’s traditions of tolerance and pluralism will be endangered if the Court relaxes its vigilance against excessive governmental accommodation of religion. These briefs were filed by all of the liberal Jewish organizations, along with such liberal Protestant groups as the Unitarians, Methodists, and Presbyterians, by civil-liberties organizations, and by the various public-school lobbies. Yet it is the groups who filed briefs in support of the Satmars who most clearly reflect pluralism at work: a remarkably diverse coalition including Orthodox Jews, the Catholic Church, the Southern Baptist Convention, and other evangelical Protestant denominations.

While opponents of the Kiryas Joel school district speak in the name of “diversity and understanding,” they have done their best to stigmatize a community that is genuinely different, but no more different than others that have been readily accommodated in the past. In defiance of logic and legal precedent, they have gotten the Supreme Court to agree. It is not easy to see how these relentless (one might almost say fanatical) legal attacks on the Kiryas Joel school district can be regarded as a contribution to pluralism and tolerance.


Footnotes

1 Like all Hasidim, the Satmar are ultra-Orthodox, but unlike others, they oppose the establishment of an independent Jewish state before the advent of the Messiah, and therefore refuse to recognize or support Israel.

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